Opinion
Crim. No. 4:04-cr-00482-TLW-2 C/A No. 4:16-cv-02047-TLW
02-06-2019
Demitrius Coleman, PETITIONER v. United States of America, RESPONDENT
Order
Petitioner Demitrius Coleman pled guilty to two counts of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and the Court sentenced him to a total of 384 months incarceration, consisting of 84 months on Count 2 and 300 months consecutive on Count 4. ECF No. 109. Both of his § 924(c) convictions were related to carjackings, in violation of 18 U.S.C. § 2119. In his § 2255 petition, he asserts that carjacking is not a valid § 924(c) predicate conviction in light of Johnson v. United States, 135 S. Ct. 2551 (2015). See ECF No. 160 at 6-7.
In a memorandum he filed in support of his petition, he says that he "was convicted of a non-offense over which this court did not have jurisdiction as 924(c) [he presumably meant to say "carjacking"] is not a crime of violence within itself under the force clause at 18: U.S.C. 924(c)(3)(A). Moreover, the residual clause at 924(c)(3)(B) is unconstitutionally vague' in light of Johnson." ECF No. 168 at 2.
The Fourth Circuit has foreclosed Petitioner's argument, holding that "the carjacking statute qualifies as a crime of violence under Section 924(c), because the carjacking statute 'has as an element the use, attempted use, or threatened use of physical force against the person or property of another.'" United States v. Evans, 848 F.3d 242, 244 (4th Cir. 2017) (quoting 18 U.S.C. § 924(c)(3)(A)). Because carjacking qualifies as a crime of violence under § 924(c)(3)(A), Petitioner's petition for relief pursuant to § 2255, ECF No. 160, is DENIED. This action is hereby DISMISSED.
As to § 924(c)'s residual clause, the Fourth Circuit recently concluded that it is unconstitutionally vague. United States v. Simms, ___ F.3d ___, 2019 WL 311906, at *1 (4th Cir. Jan. 24, 2019) (en banc). However, Simms has no impact on this case because that decision only involved the residual clause, not the force clause.
The Court has reviewed this petition in accordance with Rule 11 of the Rules Governing Section 2255 Proceedings. In order for the Court to issue a certificate of appealability, Rule 11 requires that Petitioner satisfy the requirements of 28 U.S.C. § 2253(c)(2), which in turn requires that he "has made a substantial showing of the denial of a constitutional right." The Court concludes that he has not made such a showing, and it is therefore not appropriate to issue a certificate of appealability as to the issues raised in this petition. Petitioner is advised that he may seek a certificate from the Fourth Circuit Court of Appeals under Rule 22 of the Federal Rules of Appellate Procedure.
In light of the Court's ruling, the other outstanding motions in this case, ECF Nos. 166, 167, 169, 170, 173, 175, 182, 183, are DISMISSED AS MOOT. --------
s/ Terry L . Wooten
Terry L. Wooten
Chief United States District Judge February 6, 2019
Columbia, South Carolina